Race, Racial Bias, and Imputed Liability Murder

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Fordham Law School




Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.

This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals that imputed liability murder is anything but a fringe subtype of homicide: an astounding 70% of those charged with murder during this period were charged with felony murder, accomplice liability murder, or both. The study also shows that nearly 60% of these defendants were Black, a level of racial disproportionality that is not just intrinsically extreme; it is comparatively greater than levels of disproportionality for other types of murder. The question is, why? The answer lies in part in the structural and social psychological dynamics of imputed liability murder prosecutions themselves, we claim. By reducing prosecutors’ burden to prove the most salient legal indicia of a defendant’s culpability — mens rea, actus reus, or both — and allowing prosecutors to cast a wide and undifferentiated net around almost any homicide, the felony murder and accomplice liability murder doctrines invite prosecutors to base normative charging decisions on subjective, extra-legal proxies, like “dangerousness” and “group criminality.” Multiple studies have shown that decision-makers are more likely to attribute these proxies to Black defendants and, in turn, treat them more punitively. Compounding these dynamics is the racial stereotypicality of the crimes themselves. A separate body of research indicates that felony murder and accomplice liability murder have become so cognitively synonymous with Black defendants that simply shoring up the doctrines’ structural laxity may not be enough to mitigate their disproportionate enforcement.

As states across the country grapple with reforming their felony murder and accomplice liability murder laws, this Article contributes to the ongoing debate about the legitimacy of both doctrines. It also raises critical questions about the racialized enforcement of not just these doctrines but of any doctrine that invites the State to impute criminal liability.


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